Article contributed by Jasmin J. Farhangian, Ellenoff Grossman & Schole LLP
As labor shortages continue into the summer months for many U.S. businesses, employers– including those in the hospitality industry – may turn to employing minors to help meet staffing needs. If your business employs or is considering hiring minors (i.e. individuals under 18 years old)– whether seasonally or year-round, you need to be aware of the rules and restrictions that apply.
The U.S. Department of Labor is paying attention to when and how minors are being employed and has reported a nearly a 70 percent increase in child labor violations since 2018. If your business is audited, the Department of Labor may request information about minors you employ, including the hours and type(s) of work being performed, to ensure you are complying with applicable requirements.
Violations of child labor laws can expose businesses to significant penalties. Establishments such as bars, restaurants and music venues that operate longer hours may be more prone to unknowing violations of the rules, including restrictions on the hours and times of day minors can work. In addition, minors working for restaurants and other foodservice establishments are more likely to encounter prohibited tasks (such as operating and cleaning meat slicers and grinders and certain bakery machines).
To avoid penalties, and to ensure minors are being employed safely, businesses should ensure that they understand and are complying with applicable laws.
What are the Federal Rules on Employing Minors?
At the Federal level, the Fair Labor Standards Act (FLSA) imposes restrictions on the employment of minors, including:
- Under Age 14. With very limited exceptions, minors under 14 cannot be employed.
- Ages 14 to 15. 14 and 15-year-olds are generally permitted to work outside of school hours for limited periods in non-hazardous and non-manufacturing jobs. Note that 14 and 15-year-olds may work in food preparation, but they may not perform baking activities and only limited cooking tasks (e.g., they are not permitted to operate broilers or a rotisserie, use a high-speed oven or cook over an open flame).
- Ages 16 to 17. 16 and 17-year-olds may work in non-hazardous occupations and are not restricted from working during school hours. Note that state law may impose limits regarding work hours even if not restricted under Federal law.
Are There State Restrictions to be Aware of?
Yes. Businesses must be aware of state laws, including those regarding minimum work ages, hours of work, types of employment permitted and required documentation for minors. Work permits or certificates may be required by state law, and employers should confirm the requirements in the state(s) where they employ minors, as well as any specific requirements that may apply to their industry.
New York has particularly strict child labor laws. New York limits the number of hours minors may work during the school year and generally prohibits work during school hours.
When school is in session, 14 and 15-year-olds are limited to the following hours in most occupations:
- No more than 3 hours on any school day
- No more than 8 hours on a Saturday or non-school day
- No more than 18 hours per week
- No more than 6 days per week
When school is not in session, and during vacations (where school is closed for the entire calendar week):
- Minors under 18 may not work more than 8 hours a day, 6 days a week
- 14 and 15-year-olds may not work more than 40 hours a week
- 16 and 17-year-olds may not work more than 48 hours a week
Businesses employing minors must be aware of these and other hour restrictions as well as restrictions on the times of day that minors can work (e.g., 14 and 15-year-olds can only work between 7 a.m. and 7 p.m. during the school year and between 7 a.m. and 9 p.m. when school is not in session).
In New York, minors need an employment certificate (“working papers”) in order to work. A parent or guardian signature on the application is required.
What Steps Can My Business Take?
Businesses that choose to employ minors may consider the following to help ensure compliance with applicable requirements:
- Establish a clear internal policy regarding hiring and employing minors that complies with applicable requirements;
- Ensure that managers and others who may hire and oversee the employment of minors are aware of and trained on your policies and
requirements; - Review internal practices and ensure that any existing employment is in accordance with applicable requirements so that you can catch issues first.
Employers should keep age certificates, work permits or other required documentation on file throughout the minor’s employment and for time periods required by applicable law.
Is There Anything Else My Business Should Consider When Hiring Minors?
Yes, the above does not cover all of the distinctions or considerations from an employment-law standpoint when employing minors. For example, some states have specific meal and rest break requirements, and some states have specific recordkeeping requirements for minors. Employers should also consider “consent” issues that may arise if they run background checks or if they require minors to sign employment-related agreements.
Jasmin J. Farhangian is a Partner in the Labor & Employment practice group at Ellenoff Grossman & Schole LLP in New York City. Ms. Farhangian advises businesses on all aspects of the employment relationship, from recruitment through separation of employment. Ms. Farhangian’s practice focuses on providing business-minded advice to clients and counseling them through challenging workplace issues. Ms. Farhangian is skilled at helping employers navigate compliance with rapidly changing laws. Clients appreciate Ms. Farhangian’s thoughtful and proactive approach to workplace issues, with an eye towards offering practical solutions and mitigating risk to the business. She routinely advises businesses regarding employment matters affecting employees throughout the United States. Jasmin J. Farhangian can be reached via email at jfarhangian@egsllp.com or by phone at 212-370-1300.
